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An Overview Of The Most Commonly Used Defense Arguments In Texas Injury Law

From the time we were small children, we’ve understood the benefits of shifting blame to others. We all said something like “he made me do it!” or “she started it!” by the time we were in 1st grade. And in fact, sometimes shifting blame is warranted.

As you can imagine, the defendants in personal injury cases (and their lawyers) use every available argument to convince the court that 1) the accident wasn’t their fault; 2) your lawyer hasn’t proven your case; or 3) you did something wrong; or 4) you weren’t actually injured. In this section, we’ll explore the some of the main ways defendants seek to deflect blame off of themselves. In legal terms, these are called (as you’d likely suspect) defenses.

Now, here’s tricky part. Just the same way a plaintiff is not allowed to make any accusation under the sun against a defendant, a defendant is likewise not allowed to use any excuse under the sun to defend themselves. Ultimately, the courts and lawmakers decide which defense arguments are valid and which are disallowed. Naturally, this evolves over time. What we end up with at any point in time is a list of court sanctioned defenses that can be used. You can think of these as off-the-shelf defenses.

So, when a plaintiff sues a defendant, the defense attorney has a set arsenal of defenses that he can use and he simply chooses a handful of them that best apply to the accident scenario. The most important thing that injury victims need to understand is that there is no such thing as an indefensible case. No matter how rock solid your accusations, no matter how bullet proof your evidence may be, they always at least have an opportunity to fight back, which is why you’ll need the help of an experienced personal injury lawyer. Winning your case is about proving your accusations and defeating their defense strategies.

In this article, experienced Texas personal injury attorney Michael Grossman explains the defenses that are arguable to defendants in a Texas personal injury case.


Questions answered on this page:

  • What defenses are arguable against my Texas personal injury case?
  • What role do these defenses have in my Texas personal injury case?
  • How does an experienced Dallas-based attorney help me win?

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How defense work in a Texas personal injury case.

In a Texas personal injury case the burden is on the plaintiff to prove four elements in order for their case to prevail. These elements are:

  • The plaintiff has to show that the defendant owed a duty to the victim.
  • The plaintiff has to show that the defendant failed in that duty or breached that duty.
  • The failure to fulfill a duty has to cause injury to the victim.
  • That injury must result in damages.

Defenses are designed to dispute one of these elements. Without all four elements, a plaintiff’s case falls apart.

Defenses involve allegations that someone or something outside of the lawsuit caused the injury.

As you’ll see below, defenses can impact your case where a given defendant truly shouldn’t be held responsible for what happened to you. The following are the most common defenses employed by those accused of negligently causing an accident. We’ll delve into more details in the links

  • Plaintiff failed to prove elements of case: It’s not enough to have a serious injury. Your lawyer has to make it stick in court by marching your case through the all the steps the court requires.
  • Act of God: Humans don’t control things like the weather or earthquakes. If something natural caused the accident, then a person accused of being negligent can point the finger at Mother Nature and potentially avoid paying an injured person.
  • Assumption of the risk: In this defense, the defendant is arguing that by engaging in the activity the plaintiff knew it was dangerous and accepted the risk by engaging in the activity. A classic example is skydiving. People know that skydiving is inherently dangerous. And if someone is trying to sue a skydiving company, the defendant would most likely use this defense.
  • Competitive sports doctrine: We want people to allow recreational use of their property. The law severely limits your ability to sue the landowner if you get hurt playing a sport.
  • Consent: As a general rule, people are in control over their bodies and can do whatever they want with them. In some rare circumstances, they can even consent to being hurt. When that happens, they cannot hold the person who hurt them liable.
  • Mitigation of damages: If something bad happens, it is reasonable to expect an injured person to make some efforts at making the situation better. Courts frown on injured people doing nothing to improve their well-being. An example of this would be if you were cut in an accident and did not seek medical treatment. If your injury became infected, and that infection became gangrenous which ultimately caused you to undergo an amputation. Not seeking medical treatment means that you cannot recover for the amputation because you failed to mitigate the damages.
  • New and independent cause: If a Person A does something bad to you, but Person B’s subsequent bad act is the real cause of your injury, then Person A could be off the hook.
  • Release: No matter what terrible thing a defendant did to you, if you sign a contract saying you promise not to sue him, your case is over.
  • Unavoidable accident: If no party to the lawsuit caused the accident, it’s termed “unavoidable.” Commonly, this involves animals in roadways that cause drivers to swerve into other traffic.
  • Sudden emergency: When calamity strikes, we give people some leeway. For example, if woman’s husband has a heart attack in the car, her husband’s emergency can be used as a defense if she hits another driver on the way to the hospital.
  • Suicide: After someone dies, those left behind often assume it was someone else’s fault. However, sometimes people tragically take their own lives.
  • Workers compensation: If you’ve been hurt on the job and your employer has workers comp, your benefits may be secure, but you can only sue your employer in very limited circumstances.
  • Texas injury statute of limitations: No matter how great your case is, you’ve got 2 years to file a lawsuit. After that, your case simple vanishes
Not a Moment to Waste The importance of a prompt investigation...Read More >

Grossman Law Offices has the experience to fight against these defenses.

All of the above prove two important points about why you need a thorough, experienced, hard-working attorney. First, as noted, defendants frequently employ these and other defenses just to “murky the waters” of your good claim. Juries are always asked to assess these defenses, and you’ll want a persuasive lawyer who can knock down each and every defense. Secondly, and perhaps more importantly, your lawyer needs to make sure you sue the right defendant. If he or she picks the wrong target—and it turns out that they DO have a good defense—your case could get tossed out of court entirely. Further, do you even want to drag someone into a lawsuit who truly didn’t have any fault in causing you harm? Of course not.

Being prepared for a defendant’s attempt to shield himself from liability is just one of the many important tasks we have as Texas personal injury lawyers. If you’ve been hurt, get the right lawyer on your team today. Call attorney Michael Grossman at (855) 326-0000 for your free case assessment.


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